On August 8, 2002, the Wisconsin Employment Relations Commission issued
Findings of
Fact, Conclusion of Law and Order Clarifying Bargaining Unit in the above matter wherein
it was
concluded that two Payroll Clerks employed by the Sheboygan Area School District are not
confidential employees within the meaning of Sec. 111.70(1)(i), Stats., and therefore
should continue
to be included in the collective bargaining unit represented by Wisconsin Council 40,
AFSCME, AFL-CIO, Local 1750, Sheboygan Board of Education Employees
Secretarial/Clerical Unit.

On August 26, 2002, the District filed a petition for rehearing pursuant to Sec. 227.
49, Stats.

Dec. No. 10488-D

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Dec. No. 10488-D

On September 25, 2002, the Commission issued an Order Granting the Petition for
Rehearing
for the purpose of determining whether it had made any material errors of fact or law.

To maximize the ability of the parties we serve to utilize the Internet and
computer
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.

Having considered the matter, we conclude that we did not make any material errors
of law
or fact.

NOW, THEREFORE, it is

ORDERED

The Findings of Fact, Conclusion of Law and Order Clarifying Bargaining Unit
issued on
August 8, 2002 are hereby reaffirmed.

Given under our hands and seal at the City of Madison, Wisconsin, this 22nd day of
November, 2002.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Steven R.
Sorenson, Chairperson

A. Henry Hempe, Commissioner

Paul A. Hahn,
Commissioner

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Dec. No. 10488-D

MEMORANDUM ACCOMPANYING
ORDER

In its Petition for Rehearing, the District focuses on the question of whether the
Payroll Clerks
have sufficient exposure to the District's collective bargaining strategy to warrant their
exclusion from
the bargaining unit as confidential employees. The District states:

The School District asserts as grounds for rehearing that the
August 8, 2002 decision of the
Commission in this case, contains both material errors of law and fact, more specifically
stated as
follows:

1. In its decision, the Commission
entered Finding of Fact 8, providing:

8. On the request,
the Payroll Clerks
provide payroll information to the District which is then
used by the District when developing its own bargaining proposals and responding to Union
bargaining proposals. Management employees may ask the Payroll Clerks questions about
the
information so provided and for their reactions to a possible proposal. On one occasion, a
Payroll
Clerk suggested a change in contract language which would simplify their work related to
administration of leave. In another instance, a Payroll Clerk provided the District with
significant
assistance developing the District's bargaining position on direct deposit of paychecks.

2. In its accompanying
Memorandum, at page 10, the Commission stated in part:

. . . When providing
payroll information/responding to management questions/assisting in
the development of a proposal about a specific issue which has not yet or may never reach
the
bargaining table, the Payroll Clerks are privy to the District's bargaining strategy and are
performing
confidential labor relations work. . . .

3. The
Commission entered Finding of Fact 9:

9
. Debra Regan and Doris Wuestenhagen, incumbents in the payroll positions, do not
have
sufficient access to, knowledge of, and participation in confidential labor relations matters so
as to
render them confidential employees.

4. The
Commission entered a single Conclusion of Law:

1
. The incumbents in the Payroll Clerk ­ Classified and the Payroll Clerk ­
Professional
positions are not confidential employees within the meaning of Section 111.70(1)(i), Stats.,
and

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Dec. No. 10488-D

therefore are municipal employees within the
meaning of Section 111.70(1)(i), Stats.

As reflected in the portions of our decision quoted in the District's petition, we
concluded that
the Payroll Clerks do perform some confidential labor relations work but determined that this
work
was not "sufficient" to make them confidential employees.

The District argues that our Finding of Fact 8 does not fully describe/understates the
extent
of the Payroll Clerks' exposure to/involvement in the District's collective bargaining strategy
and that
when the full extent of the Payroll Clerks' confidential work is properly understood, that
work is
sufficient to establish their confidential status. We disagree as to both points.

We remain persuaded that Finding of Fact 8 correctly acknowledges the extent of the
Payroll
Clerks' exposure to/involvement in the District's collective bargaining strategy. For
instance,
although the District contends that we failed to specifically acknowledge the Payroll Clerks'
presence
in certain meetings where District bargaining proposals may be discussed, our Finding and
the related
above-quoted portion of our Memorandum reference the confidential work that may occur at
such
meetings by noting that the Clerks do provide information and feedback to management about
specific proposals and thereby become privy to the District's bargaining strategy.

We also remain persuaded that we properly understand the true extent of the Clerks'
confidential work and correctly concluded that it is not sufficient to warrant the exclusion of
the
Clerks from the unit. We generally find that the best evidence as to the precise nature of the
work
being performed is provided by the testimony of the employee performing the work. Here,
that
testimony was provided by Clerk Regan and to a lesser extent by Clerk Wuestenhagen.
While Regan
provided "Yes" answers to broad questions reflecting exposure to the District's collective
bargaining
strategy, 1/ we found her later testimony to be more revealing as to the true nature of her
work. 2/
It is this more specific testimony that persuades us that the extent of the Clerks' involvement
in/exposure to collective bargaining strategy is not sufficient by itself or in conjunction with
the
Clerks' other duties to warrant their exclusion from the unit as confidential employees.

1/ Q Is the information which
you used to develop the exhibits or analyses generally available
to the Union and its collective bargaining team?

A No.

Q And
do you prepare these exhibits before collective bargaining begins?

A Yes.

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Dec. No. 10488-D

Q And
are you aware that the District is using these exhibits to develop its strategies for
negotiations?

A Yes.

Q Are
you ever called upon to prepare new exhibits during the course of collective
bargaining?

A. Yes.

Q Are
you ever asked to analyze issues which arise in the course of negotiations?

A Yes.

Q Are
you ever asked to participate in the meetings of the School District to ­ in meetings
­ I'm sorry. Are you ever asked to participate in meetings of the School District to
the
Collective Bargaining Committee?

A Yes.

Q Do
you provide information in the course of such meetings?

A Yes.

Q Do the
analyses which you prepare, in the course of the collective bargaining, impact
upon School District collective bargaining strategies or positions?

A Yes.

Q And
do you consult with the other Payroll employee with regard to your analysis?

A Yes.

Q How often do
you consult with each other?

A Often.

Q How
often would that be?

A Oh,
gosh, I don't know.

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Dec. No. 10488-D

Q Would you say that you
consult only when an issue arises or would you say that you
consult just on a daily basis?

A A
daily basis.

Q What
involvement, if any, do you have in preparing analyses to be used by the District in
developing initial proposals for collective bargaining?

A I'm
sorry. Can you repeat that, please?

Q If you
could talk about your involvement, if any, that you have in preparing the analysis
to be used by the District in developing your initial proposals for collective bargaining?

A Well,
I'm just asked to prepare reports, like, for the health insurance or the dental
insurance, and I prepare them. And then I give them to the administrator that asks for
them, and then we can go over them and I have to explain to them to her, exactly, what
it is.

Q You
have to explain it?

A
Sometimes, yeah.

Q Are
you involved with such preparing of analyses, right now?

A Right.

Q Prior
to negotiations?

A
Correct.

2/ Q These
sheets that you prepare for negotiations, would I characterize it right if I would say,
for instance, it's the amount of a sick leave that's out there. Is that the kinds of things
that you were--

A Right.

Q Okay.
Or it would be like a scatter sheet saying people at step such-and-such and their
seniority is such-and-such? Is that the kind of thing that you prepared?

A
Ah-huh. (Affirmative.) That's correct.

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Dec. No. 10488-D

Q If I
would show you what has been marked as Joint 7, is that the kind of thing we are
talking about?

A I'm
old, I'm over 40, and I can't see this. (Pause.) This is the information that they
would get from me to prepare this report.

Q Okay.
And are those the kinds of things that you would prepare for negotiations?

A Yes.

. . .

EXAMINATION BY
MS. ISFERDING:

Q Just
­ prior ­ let's put aside these upcoming negotiations. In the prior negotiations,
were
you privy to the employer's position during negotiations?

A I'm
not understanding what you are asking me.

Q In
prior negotiations ­

A Right.

Q -- not
this one coming up?

A That's
correct. Okay.

Q You said you were privy to
the employer's strategy. In the prior negotiations, was that
also true?

A That's
correct.

Q Now,
when you say "privy to the strategy," could you explain what you mean by that?

A If I
understand the question, you are asking me if I have, if I did reports before coming
into negotiations; and yes, I did.

Q Okay.

A I'm
doing them more now than I'm doing before but that could be a lot of reasons.

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Dec. No. 10488-D

Q Were
they the same kind of reports?

A
Basically.

Q I
mean, without you divulging this, are they the kind of reports that, for instance, list how
much sick leave is sitting out there, how many vacation is out there, and those types of
things?

A
Ah-huh. Yes.

In closing, we acknowledge that this case presents a close
question. However, as reflected
in our Memorandum, the Clerk's occasional exposure to the District's bargaining strategy is
not
sufficient to warrant a change in their long time status as unit members.